Index Archive

06 September 2018

Historic In Depth Section 377 SC legalizes same-sex relationsSection 377 of the IPC states: “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.” This British Raj law dates back to 1861 and criminalises sexual activities against the order of nature.

The Supreme Court has partially struck down Section 377 of the IPC, in so far as it punishes sex between consenting adults in same sex relations. The apex court has overruled the Suresh Kaushik verdict of 2016, which had reversed the Delhi High Court ruling decriminalizing sex in such relations.

In July 2009, the Delhi HC had decriminalized homosexuality among consenting adults after finding that it violated Article 14, 15 and 21 of the Constitution. At the time, the HC was hearing a petition filed by NGO Naz Foundation. The government had argued that homosexuality comprises only 0.3 per cent of the population, and therefore the rights of over 99 per cent cannot be compromised.

The verdict, however, was struck down by a two-judge bench of the Supreme Court in December 2013. The top court, finding that the HC's judgment was "legally unsustainable", recriminalised gay sex. The SC also left it to Parliament to consider deleting the provision from the IPC. A review petition filed by Naz was quashed.

In January this year, riding on the back of the SC's verdict on the right to privacy being a fundamental right, a petition challenging Section 377 was assigned to a five-judge Constitution bench.In July, when the SC reserved its verdict in the case, the bench had observed that it does not wait for “majoritarian governments” to act if it finds that a law violates fundamental rights. Justice Nariman had said, "The moment we are convinced that there is a violation of fundamental rights, we cannot leave anything to the legislature... The whole object of the fundamental rights chapter is to strike down laws that violate fundamental rights which majoritarian governments may find difficult to do because of vote bank concerns etc."

A five-judge Constitutional bench of the Supreme Court Thursday, in four separate but concurring judgments, legalized same-sex relations between consenting adults.The Supreme court was hearing a clutch of petitions challenging decriminalization of homosexuality.

The five-judge bench was headed by Chief Justice of India Dipak Misra and comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. The bench had reserved its verdict in the case on July 17.

The verdict Thursday was on five petitions moved by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur.

During the hearing BJP government at Center said it would not contest the petitions, and left the decision to the “wisdom of the court”. In its affidavit, the Ministry of Home Affairs said: “I state and submit that so far as the constitutional validity (of) Section 377 to the extent it applies to ‘consensual acts of adults in private’ is concerned, the Union of India would leave the said question to the wisdom of this Honorable Court.”

Justice Indu Malhotra, the only woman on the five-judge bench, says history owes an apology to the members of the community for the delay in ensuring their rights. In her judgment, she iterates that Section 377 will continue govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality.

Justice D Y Chandrachud said Section 377 is an 'anachronistic colonial law', and adds that its provision have confined a group of citizens to the margins. He says the law rests on deep-rooted gender stereotypes. "Who decides what is natural and what is unnatural? Can the state be allowed to decide? Denial of right to sexual orientation is denial of privacy rights," he said, adding that courts have to ensure citizens are not pushed obscurity because of a colonial law.

Justice Chandrachud says human sexuality cannot be reduced to a "binary formulation". He asks the medical community to sensitise itself about rights of the LGBT community, instead of trying to change what is not a disease.

Justice R F Nariman said there are four separate but concurring judgments. Justice Nariman refers to the Mental Healthcare Act, 2017, and says Parliament has also recognized that homosexuality is not a disease. "Homosexuals have right to live with dignity. They must be able to live without stigma," he says, while asking the government to give wide periodic publicity to judgment so that stigma is reduced & finally removed.

CJI Dipak Misra said: "Only Constitutional morality and not social morality can be allowed to permeate rule of law... Sexual orientation is one of the many natural phenomenon. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights. After judgment in Puttuswamy case, privacy has been raised to fundamental right."There are over 20 countries where homosexuality is not a criminal offence, and same-sex marriage is recognised, including the US, England, Australia, Germany and France.One of the first legal challenges to Section 377 came in 1994, when the NGO AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition for its repeal after Kiran Bedi, then the superintendent of Tihar Jail, refused to allow health workers to distribute condoms to male inmates.

While ABVA failed to follow through with its petition, leading to it being dismissed in 2001, Naz Foundation filed the first major case against Section 377 in December 2001 (Naz Foundation vs Govt of NCT of Delhi & Ors). A two-judge Delhi High Court Bench of Chief Justice B C Patel and Justice Badar Durrez Ahmed dismissed the case in 2004, terming it as a mere academic challenge to the constitutionality of a legislative provision. A review petition too, was dismissed.

In a landmark decision on July 2, 2009, the High Court decriminalised Section 377, ruling that consenting intercourse between two adults was not illegal. A Division Bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said: “We declare that Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. However, the court ruled, “the provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”. (Naz Foundation vs Govt of NCT of Delhi & Ors, 2009)

However, the verdict was challenged by Suresh Kumar Koushal, an astrologer and journalist, along with 15 others, in the Supreme Court on July 9, 2009.On December 11, 2013, a two-judge Supreme Court Bench of Justices G S Singhvi and S J Mukhopadhaya upheld the appeal, recriminalising gay sex. IPC 377 “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”, the Bench said, and left it to Parliament to “consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”, if it so wished

After review petitions filed by Naz Foundation, the Union government, and others in 2014 were quashed, the court in February 2016 referred a curative plea to a five-judge Bench.In 2014, in what has came to be known as the NALSA judgment, the SC accorded the transgender community the right to be called the third gender, separate from male and female The NALSA order, passed by a Bench of Justices K S Radhakrishnan and A K Sikri (National Legal Services Authority vs Union Of India & Ors, April 15, 2014), led to a reopening of the conversation regarding homosexuality.

August 24, 2017, when a nine-judge Bench of the Supreme Court ruled that the right to privacy was a fundamental right. In their order, Chief Justice of India J S Khehar and Justices R K Agrawal, D Y Chandrachud and S Abdul Nazeer said, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone…” The judgment put Section 377 in direct opposition to the legally protected fundamental right to privacy.

That same year, a group of LGBTQI activists including the celebrated dancer Navtej Singh Johar filed petitions against Section 377. In 2016, Johar’s petition was forwarded to a Constitution Bench for hearing.

Johar’s petition was assigned to a five-judge Constitution Bench. Other petitioners include chef Ritu Dalmia and hotelier Keshav Suri. The petitioners have argued that the presence of Section 377 IPC in the statute books makes it clear that the constitutional guarantees of equality, fraternity, dignity, life and liberty are not extended to them.September 2018 - In the historic combined judgment, the CJI and Justice Khanwilkar said the Section would not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities but would apply to bestiality and sexual acts without consent by one of them. Justice Nariman asked the Union government to work towards eradicating the stigma surrounding homosexuality.